COMMENTARIES
CORRECTIVE JUSTICE AND LIABILITY FOR GLOBAL WARMING
†
MATTHEW D. ADLER
This brief Commentary focuses on Professor Farber’s suggestion
that corrective justice (CJ) might justify institutions imposing liability
on greenhouse gas (GHG) emitters so as to compensate the victims of
1 2
climate change. He advances other arguments as well, and indeed it
is plausible that considerations of overall well-being, or distributive
justice, might warrant some sort of liability scheme. I will not, how-
ever, address such considerations here.
If there is such a thing as CJ , what does it require? A standard
suggestion is this: CJ imposes a duty on the agent who has acted
wrongfully, and thereby caused loss to some individual, to repair the
3
loss. There are various aspects to this paradigm. The victim’s loss
(arguably) must be more than reduction of well-being; rather, it must
be a setback to some protected interest, an aspect of well-being or of
4
personhood that is singled out for concern as a matter of CJ. The
5
action must be causally connected to the loss. And the action must
†
Leon Meltzer Professor of Law, University of Pennsylvania Law School.
1
See Daniel A. Farber, Basic Compensation for Victims of Climate Change, 155 U. PA. L.
REV. 1605, 1641 (2007).
2
See id. at 1641-47.
3
See, e.g., Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J.
695, 699-700 (2003) (“Corrective justice theory explains tort law as the embodiment of
a deontological . . . set of values. One who causes a wrongful injury to another is obli-
gated to compensate the other for the injury caused.” (footnote omitted)).
4
I say “arguably” because it is an open question whether CJ protects all aspects of
well-being, or just certain core interests. See Heidi M. Hurd, The Deontology of Negligence,
76 B.U. L. REV. 249, 260-61 (1996) (discussing different deontological conceptions of
negligence—one that condemns conduct that is substantially risky to any interest, an-
other that condemns conduct that is risky to a substantial interest). But the clearest
cases of deontological wrongs involve some setback to the individual above and beyond
a loss to her well-being. See SHELLY KAGAN, NORMATIVE ETHICS 85 (1998); Hurd, supra,
at 261. And, as mentioned below, tort law does not protect well-being per se. Thus the
clearest case for a duty of repair in CJ will involve a loss to some interest such as the
integrity of property or the physical body.
5
See Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449, 450
(1859)
1860 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 155: 1859
6
have been “wrongful” or “faulty.”
Each of these elements is illustrated by doctrines of tort law. This
is not to say that tort law actually tracks CJ. CJ theorists may simply
be incorrect in claiming that CJ is one component of morality. (Con-
sequentialists deny that it is.) And, even if CJ theorists are correct,
tort law may in fact be shaped by both CJ and non-CJ considerations.
Still, tort law is the legal institution that CJ theorists believe has the
closest connection with CJ. It is therefore instructive to note the fol-
lowing: (1) Tort law focuses on personal injury or property harms,
rather than losses to well-being per se. There is no tort of diminution
of happiness and no tort of negligent infliction of pure economic
7
loss. (2) Tort liability, at least under the rubric of negligence, obtains
only if the defendant was both the cause-in-fact and the proximate
8
cause of the plaintiff’s loss. (3) Tort law typically requires fault in the
9
form of either “intentional” wrongdoing or negligence. Even so-
called “strict liability” requires that the action causing loss satisfy some
further description, in part because the notion of imposing liability
10
for the sheer causation of harm is chimerical. For a given loss event,
there will be a multiplicity of causes of that event, including actions by
11
the victim.
Farber proposes that GHG emitters be held liable for environ-
mental damage, specifically sea level rise, harm to natural systems such
12
as coral reefs or glaciers, and drought and loss of water supplies. An
obvious difficulty in justifying such liability as a matter of CJ is that
these environmental damage events are not themselves losses to indi-
(1992) (explaining that the better and dominant conception of CJ imposes a duty of
repair on some individual who has “causally contributed” to the injury).
6
Although some CJ theorists propose liability without fault, the case for “wrong-
fulness” or “fault” as an element of CJ is strong. See, e.g., id. at 496-500.
7
Loss of happiness may be an element of tort damages, but the infliction of a loss
of happiness, even an intentional infliction, is not itself a tort. See DAN B. DOBBS, THE
LAW OF TORTS 822 (2000) (noting that “[l]oss of enjoyment of life” is an element of
damages for physical injury); id. at 832 (stating that the tort of intentional infliction of
emotional distress requires severe distress). On negligent infliction of economic loss,
see id. at 1282-83.
8
See id. at 269.
9
See id. at 941.
10
See id. at 942 (surveying cases where tort law recognizes strict liability and char-
acterizing them as cases where the “defendant creates or introduces a dangerous con-
dition not commonly accepted or reciprocated in the social unit”).
11
Stephen R. Perry, The Impossibility of General Strict Liability, 1 CAN. J.L. & JURIS-
PRUDENCE 147, 154-59 (1988).
12
See Farber, supra note 1, at 1609-13.
2007] CORRECTIVE JUSTICE AND LIABILITY FOR GLOBAL WARMING 1861
viduals’ paradigmatically protected interests. They do not constitute
(or directly cause) infringements of private property, physical injuries
to individuals, or death. An exception would be the loss of acreage to
coastal property owners, a quite direct result of sea level rise. By con-
trast, damage to natural systems and water supplies will not amount to
an invasion of private property interests, since these resources are not
(at least not typically) privately owned.
Can’t this difficulty be circumvented by imposing liability on GHG
emitters for a different set of harms—namely personal injury and pri-
vate property damage, the core of tort law? Such a compensation
scheme would more readily satisfy the protected-interest element of
the CJ paradigm than Farber’s scheme, but would have greater diffi-
culties in satisfying the causal-connection element. Since global
warming causes deaths, injuries, and property losses via environ-
mental damage (or extreme weather events), the causal links between
a particular set of GHG emissions and those protected interests will
generally be more attenuated than the links between those emissions
and environmental damage.
A different possibility, preserving Farber’s focus on environmental
damage, is to conceptualize an ecosystem or water supply as public
property, belonging to the governmental entity with primary jurisdic-
tion over this resource, or held in trust for the citizenry to which that
entity is politically accountable. Indeed, the main U.S. scheme for
rectifying environmental damage, the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA), provides for
suits brought by the United States, the states, or Indian tribes, as trus-
13
tees for the damaged resources, rather than by private individuals.
Compensation to governmental entities for damage to public
property is not unimpeachable as a matter of CJ. Is the loss supposed
to be to the public entity itself (in which case one might wonder
whether artificial persons, such as governments, can be victims to
whom CJ creates duties of repair) or to the natural persons, i.e., indi-
vidual citizens, whom the entity represents (in which case one might
wonder whether an individual’s interest in the publicly held resource
is the sort of protected interest that CJ safeguards)? But providing
compensation to public entities for environmental damage caused by
GHG emissions seems at least a promising approach to a compensa-
tion scheme that will fit within the CJ paradigm.
Upon whom, though, would liability be imposed? Who, for ex-
13
Id. at 1623-25.
1862 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 155: 1859
ample, has a duty as a matter of CJ to compensate Australia for the
damage to its coral reefs caused by global warming? Are there GHG
emitters whose contributions to global warming, and thus to the dam-
age to the public property of Australia, were wrongful (in some
sense)?
One route to wrongfulness is to show that the actor “intentionally”
caused the loss: that he acted with the very purpose of causing it,
knew that it would result from his action, or at least should have be-
14
lieved to a certainty or near-certainty that it would result. It is diffi-
cult to see how GHG emissions will be “intentional” in this sense.
GHG emissions are a byproduct of activities (using automobiles, gen-
erating electricity, running factories, etc.) that do not have global
warming as their very object. And, given the uncertainty about the
causes and consequences of global warming, it will be very difficult to
show that some group of GHG emitters knew, or had reason to believe
to a near-certainty, that any environmental damage—let alone the
particular damage claimed by some public entity (Australia, say)—
would result from its emissions.
Another route to wrongfulness is to show that the action, albeit
unintentional, was wrongful under some other description. But there
is a problem. GHG emissions, at least at the level of individual actors,
may have the structure of a moral collective action problem. A moral
collective action problem arises when there is a kind of action that, if
taken by every or most members of a group, has morally bad conse-
quences, but that each member of the group is morally justified in tak-
15
ing. Assume, in particular, that the causal link between GHG emis-
14
“Intention” in the narrowest sense of specific intention, where the action is un-
dertaken with the aim of producing the loss (either because the actor has that as his
ultimate goal or because he sees it as a means to some ultimate goal), may well be rele-
vant to deontological wrongdoing. See KAGAN, supra note 4, at 100-05. Intention for
purposes of the “intentional” torts is the disjunction of specific intention and subjec-
tive near-certainty. See DOBBS, supra note 7, at 47-49. I have built in the further dis-
junct of objective near-certainty to suggest that GHG emitters do not meet even a very
generous version of “intention.”
15
For a discussion of moral collective action problems, specifically problems cre-
ated by subthreshold actions—actions that are too small to cause harm individually—
see Jonathan Glover, It Makes No Difference Whether or Not I Do It, 49 PROC. ARISTOTELIAN
SOC’Y (SUPP.) 171 (1975); Jonathan Harrison, Rule Utilitarianism and Cumulative-Effect
Utilitarianism, 5 CAN. J. PHIL. (SUPP. V) 21 (1979). For a skeptical view, see DONALD
REGAN, UTILITARIANISM AND CO-OPERATION 54-65 (1980). In this brief Commentary, I
do not mean to stake out a definitive position on the possibility of moral collective ac-
tion problems and their precise structure, if they are possible. I simply mean to sug-
gest that the issue is a serious one that anyone confronting the morality of global
warming needs to engage. Thresholds are intuitively possible and the most straight-
2007] CORRECTIVE JUSTICE AND LIABILITY FOR GLOBAL WARMING 1863
16
sions and global warming has a threshold far above the increment of
GHGs produced by any given individual through any of her activities,
such as driving a gasoline-powered car, using electricity from coal-
fired power plants, or purchasing goods that were produced using
such electricity. Imagine, then, the position of an individual deciding
whether to reduce her own GHG emissions at some moderate cost—
for example, by switching to a more expensive hybrid automobile and
lowering her thermostat in winter. Because the individual’s own re-
duction in GHG emissions would not change global temperatures at
all (given the threshold hypothesis), that reduction apparently cannot
be morally required, at least qua global warming. Indeed, because the
reduction in GHGs imposes costs on the individual and members of
her household, in reduced material well-being and comfort, it is the
decision not to reduce her own emissions that appears to be morally
required, or at least morally supererogatory.
The problem here is not just a problem about causation. Tort
scholars puzzle over cases where but-for causation fails—for example,
where two careless backpackers, acting independently, flick cigarette
ashes which produce small fires that combine to destroy a forest, so
that neither act of ash-flicking was the but-for cause of the forest’s de-
17
struction. In that example, each backpacker’s action was negligent.
Each act of ash-flicking, taken individually, had substantial expected
costs, because in many possible states of the world ( just not the actual
world, as it turns out) there would be no other ash-flicker in the back-
ground and, thus, no fire without the act. By contrast, if an individ-
forward way to construct what appears to be a moral collective problem.
16
By this I mean some amount of emissions, T, such that emissions below T cause
no change in global temperatures. Toxicologists have traditionally assumed that non-
carcinogenic toxins have a threshold level below which exposures determinately do
not cause harm, and this model has been influential in shaping regulation. See, e.g.,
Matthew D. Adler, Against “Individual Risk”: A Sympathetic Critique of Risk Assessment, 153
U. PA. L. REV. 1121, 1161 nn.150-51 (2005) (citing sources). For discussions of possi-
ble thresholds with respect to different impacts of global warming, see Ove Hoegh-
Guldberg, Climate Change, Coral Bleaching, and the Future of the World’s Coral Reefs, 50
MARINE & FRESHWATER RES. 839 (1999) (coral bleaching); Martin Hoyle & Mike
James, Global Warming, Human Population Pressure, and Viability of the World’s Smallest But-
terfly, 19 CONSERVATION BIOLOGY 1113 (2005) (species extinction); Michael Oppen-
heimer, Global Warming and the Stability of the West Antarctic Ice Sheet, 393 NATURE 325
(1998) (melting of the West Antarctic ice sheet); Thomas F. Stocker & Andreas
Schmittner, Influence of CO2 Emission Rates on the Stability of the Thermohaline Circulation,
388 NATURE 862 (1997) (disruption of thermohaline circulation).
17
See Richard W. Wright, Causation in Tort Law, 73 CAL. L. REV. 1735, 1775-76
(1985) (describing cases of duplicative and preemptive causation, where the but-for
test fails).
1864 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 155: 1859
ual’s own GHG emissions produce no change in global temperatures
regardless of the background level of GHG emissions produced by
other actors, then there is no state of the world in which the emissions
cause increased environmental damage and thus, apparently, no neg-
18
ligence in the individual act.
The existence of a threshold in the casual link between GHG
emissions and global warming is the easiest way to generate an (ap-
parent) moral collective action problem. But such a problem could
also seemingly arise given a threshold in the link between global
warming and environmental damage or, more generally, given non-
linearities in the link between GHG emissions and global warming or
19
between global warming and environmental damage.
The possibility that GHG emissions constitute a moral collective
action problem is an important difference between liability for global
warming and the proposal that reparations be paid for slavery, a pro-
20
posal that Farber points to as a rough analogy. Individual slave own-
ers did confront a sort of threshold with respect to creating a culture
of racial subordination—that is, no individual slave owner’s actions
may have made a difference to the existence and intensity of general
views about black inferiority—but, in addition, each individual slave
owner did very substantial wrong to the slaves he owned. So there is
no question about the wrongfulness of each slave owner’s actions,
taken alone, while there is a serious question about the wrongfulness
18
As Jonathan Harrison explains:
Th[e] risk-avoidance explanation of why I have a duty not to do something
which, harmless though it is by itself, would do harm if enough other people
were to do the same, is . . . totally unsatisfactory. That it is unsatisfactory fol-
lows from the remarks I have already made about a threshold below which
one action by itself has not the power to produce any ill effects. Given that it
falls below this threshold, no individual action by itself ever does any harm,
whether it is the only one of its kind which is performed, or whether every-
body or almost everybody performs actions of a similar kind. The effects of
my action (and, of course, theirs) on the harm done [are] always nil, whether
others do what I do or whether they do not.
Harrison, supra note 15, at 33-34.
19
To see in a simple way how nonlinearities could produce an (apparent) moral
collective action problem, imagine that there are a group of n potential individual
emitters, each potentially emitting K units of GHGs, and that W(.) is the change in
global temperature produced by emissions. Each individual benefits by B from the
emission of K units, and the costs of a given change are linear in the change, i.e., equal
to cW(.). Then it’s easy to see that if W(nK) > nW(K), the net benefits of an individ-
ual’s emissions might be positive, while the net benefits of emissions in the aggregate
might be negative. That is, B > cW(K), but nB < cW(nK).
20
Farber, supra note 1, at 1632-35.
2007] CORRECTIVE JUSTICE AND LIABILITY FOR GLOBAL WARMING 1865
of each GHG emitter’s actions, taken alone.
Whether GHG emissions truly do amount to a moral collective ac-
tion problem depends on the science of global warming. For exam-
ple, if the connection between GHG emissions and environmental
damage is linear, or if there are thresholds but they are below the
level of individual emissions, the problem disappears. The problem
may also, perhaps, be dissolved at the level of moral theory. Perhaps
the moral justifiability of an act depends, in part, on the justifiability
or consequences of some group of acts to which the individual act be-
21
longs. Finally, it is possible (I suppose) that an action might be
“faulty” or “wrongful” as a matter of CJ even though it is morally justi-
fied. There are many difficult scientific and moral questions here, at
which I can only gesture. I simply wish to suggest that the possibility
of a moral collective action problem is one that anyone hoping to jus-
tify the imposition of liability on GHG emitters as a matter of CJ must
grapple with.
One way to address moral collective action issues in the design of
a liability scheme is to impose liability on “large” actors—those who
produced or induced a large quantity of emissions. It is possible that
neither China’s emissions, nor the emissions of all the cars produced
by Ford Motor Co., nor the emissions of an individual natural person,
make any difference, taken alone, to global temperatures. On the
other hand, it is possible that China’s emissions make a difference,
while Ford Motor Co.’s and the individual’s do not. But it seems vir-
tually inconceivable that China’s emissions make no difference, while
Ford’s or the individual’s do. There are, to be sure, scenarios where
one individual makes a difference, while a whole group of different
individuals do not. Imagine that there are a billion and one buttons;
only one is connected to a huge nuclear bomb. I press that button
while a billion Chinese citizens simultaneously press the others. Thus,
China’s actions, en masse, do not cause nuclear destruction, while
21
For example, Harrison defends “cumulative effect utilitarianism” as a solution
to the problem of subthreshold actions:
[C]umulative-effect utilitarianism [contends] that I ought to omit an action if,
because of its cumulative effects, harm would be done if everybody were to do
it, or to perform an action if good were to be done if everybody were to do it,
regardless of the fact that, in the first case, it may by itself do no harm, or even
do good, and regardless of the fact that, in the second case, it may do no
good, and even do harm.
Harrison, supra note 15, at 28-29. Glover argues for a “principle of divisibility”: “It says
that . . . where a hundred acts like mine are necessary to cause a detectable difference I
have caused 1/100 of that detectable harm.” Glover, supra note 15, at 174.
1866 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 155: 1859
mine does. I am not aware of suggestions, however, that the connec-
tion between GHG emissions and global warming has this sort of
structure!
This line of thought suggests that a scheme of liability for global
warming should target the largest discrete actors—namely, govern-
mental entities. If the quantity of emissions produced by firms or in-
dividuals within the territory of the United States over some stretch of
time was sufficiently large to cause, and to have been expected to
cause, a change in global temperatures, then it is plausible that the
government of the United States acted wrongfully in encouraging or
22
failing to reduce those emissions. Combining this suggestion with
my suggestion earlier that compensation might be paid to a govern-
mental entity for damage to the environment within its jurisdiction,
what emerges is this: A government-versus-government structure for
global warming liability seems particularly promising as a matter of
CJ. For example, Australia might seek redress from the United States
for damage to Australia’s coral reefs that emissions from the United
States, as a whole, caused and that the U.S. government allowed. This
government-versus-government structure seems to involve compensa-
tion for a loss that is a protected interest (the environmental resource
understood as public property); the causal issues, however thorny, are
less so than in the case of compensation for private property losses or
individual injuries or deaths; and a government’s inaction in the face
of GHG emissions may well be wrongful, by actually making a differ-
ence to global temperatures, even if individual or firm emissions are
not.
But there is a further wrinkle, having to do with one sort of rem-
edy that Farber proposes: namely, ex ante compensation to monitor
23
and prevent future harms. While a claim by Australia against the
United States for past damage to its coral reefs seems plausible as a
matter of CJ, a claim by Australia against the United States for money
to fund steps that will ward off possible future damage to Australia’s
reefs is less plausible.
The key difficulty is that risk imposition is not itself a welfare set-
24
back. By analogy (if not by strict deduction), the risk of infringing a
22
To be sure, pure inaction may not be wrongful as a matter of CJ, but I assume
that a plausible case can be made that the United States is on the “action” side of any
action/inaction divide with respect to the emissions of GHGs, by establishing an elabo-
rate system of air pollution regulation without controlling GHGs.
23
Farber, supra note 1, at 1635-36.
24
On the connection between risk and harm, see Adler, supra note 16, at 1188-93.
2007] CORRECTIVE JUSTICE AND LIABILITY FOR GLOBAL WARMING 1867
25
protected interest does not itself infringe a protected interest. If I
am likely to trespass on your property or body, but have not yet done
so (and the likelihood of my doing so does not scare you), I have not
yet wronged you and, thus, have not yet done anything that would trig-
26
ger an obligation to repair under CJ . Indeed, tort law generally
27
does not compensate for pure risk imposition. So-called “loss of
chance” cases involve a special relationship between the plaintiff and
28
defendant, such as that between doctor and patient. The medical
monitoring cases, which seem to provide a helpful analogy for Far-
29
ber, are controversial and, in any event, typically involve something
additional to the pure risk of possible future injury and the pure eco-
nomic loss of monitoring costs—in particular, a current physical im-
30
pact, such as exposure to a toxin.
Australia’s claim to recover from the United States now, to fund a
program to monitor and mitigate future damage to its coral reefs,
looks like compensation for pure risk imposition or pure economic
loss, and is therefore problematic as a matter of CJ.
In conclusion, I suggest that CJ may warrant a compensation
mechanism for global warming, but that the structure of that mecha-
nism may be quite distinctive: namely, compensation by governments
to other governments for past (not expected) environmental damage.
Given a causal link between GHGs and global warming, it seems very
plausible that GHG emissions by sufficiently large actors are substan-
tial moral wrongs. But one should not leap from that premise to the
conclusion that a compensation scheme will be supported by consid-
erations of CJ simply because it channels resources from GHG emit-
ters to those suffering or likely to suffer the effects of global warming.
25
This is not strict deduction insofar as protected interests might be aspects of
autonomy or “personhood,” rather than of well-being.
26
Although it is arguable that the imposition of risk in a Bayesian sense does
amount to a dignitary harm, see Adler, supra note 16, at 1192-93, it is hard to see how
this line of thought supports ex ante remedies for global warming. Past GHG emis-
sions by U.S. emitters that threaten future harm to coral reefs are hardly a dignitary
harm to Australia.
27
See Matthew D. Adler, Risk, Death and Harm: The Normative Foundations of Risk
Regulation, 87 MINN. L. REV. 1293, 1437-39 (2003).
28
Id. at 1438.
29
Farber, supra note 1, at 1636.
30
See Kara L. McCall, Comment, Medical Monitoring Plaintiffs and Subsequent Claims
for Disease, 66 U. CHI. L. REV. 969, 975-76 (1999).